Full-auto Scalia / Heller

This is a discussion on Full-auto Scalia / Heller within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; After my initial reading of Scalia's Heller decision, I found what I consider to be a large problem -- Scalia apparently feels that the Second ...

Full-auto Scalia / Heller

After my initial reading of Scalia's Heller decision, I found what I consider to be a large problem -- Scalia apparently feels that the Second Amendment does not protect our right to keep weapons that operate fully automatically. I can't follow his logic (and possible double-speak).

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).

The first part appeared o.k. until I considered what 'in common use' might mean with regard to machine guns. The only reason that they are not 'in common use' is that they are mostly illegal. This is like saying "machine guns are not protected arms because they are banned." Circular reasoning. He goes on to say:

Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

How useful would a machine gun be in a riot / looting situation? I think they would be 'typical' if they were legal. Who wouldn't own a select fire weapon if they had the option? The price is the same. Increased firepower is a necessity to defend against superior numbers. A few quick triplets would be a nice tune to play. And how could I ever be part of a 'well regulated' militia if I am denied the right to keep and bear proper small arms?

...
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

I don't see what's wrong with the People having the right to keep whatever small arms may be used by common soldiers -- in order that the militia be well regulated and most effective. Scalia's whole line of thinking seems defective. Does the Second Amendment now protect the right to keep and bear whatever arms are not illegal? What a useless right.

What am I missing? What if in the colonial era, muskets were only legal for the King's soldiers and the people had the right to keep and bear slingshots and rocks? What use would the militia be?

What am I missing? What if in the colonial era, muskets were only legal for the King's soldiers and the people had the right to keep and bear slingshots and rocks? What use would the militia be?

Scalia's logic was impeccable. His argument was to clarify the original intent of the Second Amendment and defer to the Miller decision. His argument has nothing to do with what was legal, but rather what was common.

His point that the degree of fit is different today is a brilliant observation. Obviously, an ordinary citizen should not be allowed to possess a nuclear weapon even though it is now common (and necessary for our defense) in our military.

Scalia's logic was impeccable. His argument was to clarify the original intent of the Second Amendment and defer to the Miller decision. His argument has nothing to do with what was legal, but rather what was common.

His point that the degree of fit is different today is a brilliant observation. Obviously, an ordinary citizen should not be allowed to possess a nuclear weapon even though it is now common (and necessary for our defense) in our military.

Please clarify it for me even more, especially that 'degree of fit' line. Keeping an m-16 seems to be a perfect fit. Equally useful for self defense and militia service. The same as a musket was in its day.

If a law-abiding citizens can't commonly purchase one, how could they be common? This is about as 'impeccably' logical as saying "if the law limits us to muskets, then the Second Amendment only protects our right to keep and bear muskets" because that is all that a law-abiding citizen might commonly keep.

I don't want a nuclear weapon, I just want small arms that a common soldier might use.

I've been puzzling over the sections you quoted for a while. I think Scalia is dancing around the issue to avoid making a definitive statement on machine guns (that would be outside the scope of this case and might have cost us the narrow majority we got), but hinting that the issue does need to be resolved by a future case.

He's using "in common lawful use" as an out to avoid outright declaring machine guns protected arms, as they clearly would be under a basic reading of the 2A (he even says as much, albeit with a "may" clause in front of it), but that basically hands us the route to challenge the '86 registration closure. All that needs to happen is to show that the only reason post-86 machine guns aren't in "common lawful use" is because they are banned.

The argument cannot be logically made that the 2A ceases to protect an arm the moment it is declared illegal. As you've said, that's circular logic and is painfully obvious at that. And I don't think that's what Scalia is trying to say.

I think he's staying true to the case before the court by not writing an over-arching ruling that would invalidate laws that were not being challenged. But at the same time, he clearly lays out the logic for future cases against those laws.

I could be wrong, but I don't think this is bad news for us. We didn't lose (most of) our RKBA overnight, and we won't get it back overnight either. We'll have to build a foundation of court precendant and it's going to be a long drawn-out fight, but Heller is an excellent start.

"A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed."
Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

I believe that the Miller criteria was based on the suitability of a particular weapon for typical military service, and Miller's short-barreld shotgun didn't meet that criteria.

During the Heller hearing, Ginsberg asked Heller's attourney if the interpretation for 'k&b' would be for machineguns as they would be suitable for military service. I almost peed my pants at that one.

Somewhere I was reading the (a) logical progression -
Heller says it's an individual right.
a potential challenge in NY would bring out the significant expense of obtaining a permit.
A serious cash outlay for an individual right is essentially a poll tax.
Poll taxes are prohibited by the 24th ammendment.
a $200 transfer tax (NFA stamp) on a legal item can also be construed a poll tax.

That could negate the NFA stamps, and lengthy transfer process. It may not do much for the Hughes ammendment (bans post 86MGs)

I am curious as to legal precended for any items that are 100% okay before a date, then identical items made after a date are forbidden. Maybe Ivory? I'm not really certain-

I've been puzzling over the sections you quoted for a while. I think Scalia is dancing around the issue to avoid making a definitive statement on machine guns (that would be outside the scope of this case and might have cost us the narrow majority we got), but hinting that the issue does need to be resolved by a future case.

He's using "in common lawful use" as an out to avoid outright declaring machine guns protected arms, as they clearly would be under a basic reading of the 2A (he even says as much, albeit with a "may" clause in front of it), but that basically hands us the route to challenge the '86 registration closure. All that needs to happen is to show that the only reason post-86 machine guns aren't in "common lawful use" is because they are banned.

The argument cannot be logically made that the 2A ceases to protect an arm the moment it is declared illegal. As you've said, that's circular logic and is painfully obvious at that. And I don't think that's what Scalia is trying to say.

I think he's staying true to the case before the court by not writing an over-arching ruling that would invalidate laws that were not being challenged. But at the same time, he clearly lays out the logic for future cases against those laws.

I could be wrong, but I don't think this is bad news for us. We didn't lose (most of) our RKBA overnight, and we won't get it back overnight either. We'll have to build a foundation of court precendant and it's going to be a long drawn-out fight, but Heller is an excellent start.

Thanks for the insight. I agree, this particular section of the opinion does dance back and forth in speculation, inviting future litigation.

Originally Posted by Shizzlemah

I believe that the Miller criteria was based on the suitability of a particular weapon for typical military service, and Miller's short-barreld shotgun didn't meet that criteria.

During the Heller hearing, Ginsberg asked Heller's attourney if the interpretation for 'k&b' would be for machineguns as they would be suitable for military service. I almost peed my pants at that one.

Somewhere I was reading the (a) logical progression -
Heller says it's an individual right.
a potential challenge in NY would bring out the significant expense of obtaining a permit.
A serious cash outlay for an individual right is essentially a poll tax.
Poll taxes are prohibited by the 24th ammendment.
a $200 transfer tax (NFA stamp) on a legal item can also be construed a poll tax.

That could negate the NFA stamps, and lengthy transfer process. It may not do much for the Hughes ammendment (bans post 86MGs)

I am curious as to legal precended for any items that are 100% okay before a date, then identical items made after a date are forbidden. Maybe Ivory? I'm not really certain-

I find it ironic that short-barrelled weapons are now used almost exclusively by the military. Shotguns such as Masterkey included.

I hafta listen to the oral arguments again -- I remember there was a question about machine guns.

BTW - Justice Samuel Alito is on the record as saying that a Federal ban on machine guns is unconstitutional.

I find it ironic that short-barrelled weapons are now used almost exclusively by the military. Shotguns such as Masterkey included.

They were in 1939 too. The Thompson M1 had a 10.5" barrel, and short barreled "trench" shotguns were used at the time too. If Miller had showed up and been able to present evidence that this was the case, who knows what would have happened. Too bad he was already dead.

"A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed."
Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

Machine guns dont get alot of PR because they are in a somewhat protected class.

Because of this, machine guns are under a whole different set of rules than regular non atuomatic guns.

That's the circular reasoning being suggested. They're in a protected class, thus they're under a set of rules, hence they're verboten. Yet, it's only really because of the rules imposed on them that protects them as special, which drives their rarity. They'd certainly be common, if the silly protections were left behind.

One would think murder=prison/death, violent robbery=prison/death, rape=prison/death, kidnapping=prison/death would be sufficient to guard against misuse. That, and the fact that all citizens around you would be well-prepared to terminate your violence if you couldn't/wouldn't do so yourself. Of course, the latter cannot happen in a society vehemently opposed to honorable self-defense. Which brings us to the point of circular logic justifying the existence of the rules. Silly.